Perez v. Holder (1st Cir 6 20-2012)


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Tragic circumstances but no asylum granted.

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Perez v. Holder (1st Cir 6 20-2012)

  1. 1. Not for Publication in Wests Federal Reporter United States Court of Appeals For the First CircuitNo. 11-1853 RUBEN PEREZ and AURA ORTEGA PEREZ, Petitioners, v. ERIC H. HOLDER, Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Stahl, and Lipez, Circuit Judges. Randy Olen, on brief for petitioner. Monica G. Antoun, Trial Attorney, Office of ImmigrationLitigation, Tony West, Assistant Attorney General, Office ofImmigration Litigation, and Jennifer Parker Levings, SeniorLitigation Counsel, Office of Immigration Litigation, on brief forrespondent. June 20, 2012
  2. 2. STAHL, Circuit Judge. Ruben Perez and his wife, AuraOrtega Perez, petition for our review of the denial by the Board ofImmigration Appeals (BIA) of their motion to reopen their removalproceedings. Though the facts of this case are troubling, we seeno abuse of discretion in the BIAs actions, and we therefore denythe petition. I. Background Ruben Perez, a Guatemalan citizen, entered the UnitedStates without inspection on July 1, 1990.1 He and his familyremained in the United States illegally for some time, eventuallyapplying for asylum and withholding of removal on June 26, 1998.The Perezes application was referred to an immigration judge (IJ)for adjudication and the family was placed in removal proceedings;they received their notice to appear on October 5, 1998.2 The Perez family appeared before the IJ for their meritshearing on March 20, 2000. At the hearing, both Ruben and Auratestified that Rubens cousin was murdered by guerrillas inGuatemala. Ruben testified that he never personally had anycontact with guerrillas. Aura testified that, though she had never 1 Aura and the couples son, Esvin, entered without inspectionon August 1, 1993. 2 The referral was based on the fact that the application fellwell outside of the one year statute of limitations for asylumapplications, but the IJ found that the Perezes failure to filewas based on their retained representatives ineffective assistanceand excused the late filing. -2-
  3. 3. observed it herself, she had heard that Ruben was followed byunknown people. She also testified that she had never had anycontact with the guerrillas. Both Ruben and Aura testified thatthey had never belonged to any political group in Guatemala. Theyboth also testified that they feared for Rubens life if theyreturned to Guatemala because his cousin had been killed, allegedlyby guerrillas. The IJ issued an oral decision on the same day, denyingthe application for asylum and withholding of removal and holdingthat the Perezes had not established a well-founded fear of futurepersecution because the war between the Guatemalan government andthe guerrillas had ended years earlier. The IJ did, however, grantvoluntary departure. The Perezes appealed the IJs decision to theBIA, which summarily affirmed the IJ on April 19, 2002. ThePerezes did not appeal that decision, nor did they depart from theUnited States. However, Rubens brother, Cesar Perez Hernandez, didreturn to Guatemala. On November 19, 2008, two months afterleaving the United States, Hernandez was driving in his car withhis family when another car pulled up beside them and beganshooting. Hernandez was shot numerous times and killed, and hiswife, son, and daughter were all injured from gun shot wounds.Hernandezs son was shot in the face and lost his right eye as a -3-
  4. 4. result. The police did not solve the crime or establish a motivetherefor. On March 29, 2011, nearly nine years after the BIAsdecision and some twenty-eight months after the murder ofHernandez, the Perezes filed a motion with the BIA to reopen theirremoval proceedings, recounting the facts of the grisly attack, andrenewing their argument that they possessed a well-founded fear offuture persecution should they return to Guatemala. They basedtheir argument on their speculation that Hernandez was killedbecause he had recently returned to Guatemala from the UnitedStates and the Perezes feared the same outcome should they go backto Guatemala. The Perezes supported their motion to reopen with anaffidavit from Ruben and a newspaper article reporting on themurder. On July 7, 2011, the BIA denied the motion to reopen asuntimely, finding that the exception to the ninety-day time limitbased on changed circumstances did not apply. See 8 C.F.R.§ 1003.2(c)(3)(ii). The BIA found instead that the Perezes hadmerely demonstrated that a "terrible crime" had taken place, andthat their fear was of "generalized violence and crime in theirhome country," which did not amount to a valid basis for asylum.The Perezes timely appealed to this court. -4-
  5. 5. II. Discussion We review the denial of a motion to reopen only for abuseof discretion, meaning that we will uphold the BIA "unless thecomplaining party can show that the BIA committed an error of lawor exercised its judgment in an arbitrary, capricious, orirrational way." Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)). This is because "motions to reopen removal proceedings aredisfavored as contrary to the compelling public interests infinality and the expeditious processing of proceedings." Id.(quoting Raza, 484 F.3d at 127) (internal quotation marks omitted). In order to be eligible for asylum, among otherrequirements, an applicant must show that he possesses a well-founded fear of future persecution on account of one of fivestatutory bases: race, religion, nationality, membership in aparticular social group, or political opinion. See, e.g., Smith v.Holder, 627 F.3d 427, 436-37 (1st Cir. 2010) (citing 8 C.F.R.§ 208.13(b)(2)(i)(A)). When the BIA has found that an applicanthas not met the requirements for relief, that applicant ispermitted to file one motion to reopen the removal proceedingswithin ninety days of the BIAs final decision. 8 C.F.R.§ 1003.2(c)(2). These time and number limitations do not apply ifthe applicant can show changed circumstances in his home countryand if the evidence of those changed circumstances is "material to -5-
  6. 6. the underlying substantive relief" sought and was unavailable atthe time of the prior proceedings. See Raza, 484 F.3d at 127(citing 8 C.F.R. § 1003.2(c)(3)(ii)). In addition to providingpreviously unavailable material evidence of changed countryconditions, an applicant needs to "establish a prima facie casesufficient to ground a claim of eligibility for the underlyingsubstantive relief requested." Id. at 128. In other words, "thenew facts alleged, when coupled with the facts already of record,[must] satisfy us that it would be worthwhile to develop the issuesfurther at a plenary hearing on reopening." Smith, 627 F.3d at 438(quoting In re L-O-G-, 21 I. & N. Dec. 413, 419 (BIA 1996)). Thismeans that the Perezes proffered evidence must present "areasonable likelihood that [they] will face future persecutionbased on a statutory ground." Id. at 437 (internal quotation marksomitted). The standard for granting reopening is the same for bothasylum and withholding of removal. Id. at 437 n.10. The Perezes argue that, though their motion to reopen wasfiled years after the BIAs final decision, the brutal attackagainst the Hernandez family, combined with the previous murder ofRubens cousin, qualifies as changed country conditions and thattherefore the ninety-day limit should not be applied to theirmotion. The Perezes have one thing working in their favor: we havepreviously held that "recent violence against a petitioners familymembers can constitute a material change in country conditions for -6-
  7. 7. a petitioner seeking to reopen his or her removal proceedings."Id. at 436; see also Malty v. Ashcroft, 381 F.3d 942, 945-46 (9thCir. 2004). However, we need not decide if the two murders of Rubensfamily members are sufficient to show a material change in countryconditions, because the Perezes cannot establish a prima facie casefor asylum.3 To make out a prima facie case, the persecutionfeared must be on account of a statutorily protected ground.4 See,e.g., Smith, 627 F.3d at 436-37. In their initial asylumapplication, the Perezes seemed to allege membership in theparticular social group of those people who refused to join theguerrillas. They have abandoned that stance in these proceedings,and for good reason: since the civil war in Guatemala ended, wehave repeatedly held that fear of persecution by guerrillas will nolonger give rise to a successful asylum claim. See, e.g., Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35-37 (1st Cir. 2005); 3 A failure to make a prima facie case for asylum necessarilymeans the Perezes have also failed to do so with regard to theirwithholding of removal claim. See Parvez v. Keisler, 506 F.3d 93,98 (1st Cir. 2007). We therefore do not further address thewithholding of removal claim. 4 We note that, in instances where courts, including ours,have held that violence against family members was sufficient toshow a material change in country conditions, there has been aclose nexus to a statutory basis. See Smith, 627 F.3d at 431(violence connected to political activism); Malty, 381 F.3d at 946(violence connected to status as a Coptic Christian). -7-
  8. 8. Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 125 (1st Cir. 2005);Quevedo v. Ashcroft, 336 F.3d 39, 44-45 (1st Cir. 2003). In their motion to reopen and on appeal here, the Perezesdo not clearly identify any nexus to a statutory ground. Theclosest they come is to speculate that Hernandez was killed due tohis status as a Guatemalan who had recently returned from theUnited States, and presumably, because the Perezes would also beGuatemalans returning from the United States, that they would bepersecuted on that account. We have previously declined theopportunity to recognize Guatemalans returning from the UnitedStates as a "particular social group" for purposes of asylumrelief. See, e.g., Socop v. Holder, 407 F. Appx 495, 498 & n.1(1st Cir. 2011) (finding "unassailable" the BIAs rejection of thepetitioners claim that he would be targeted on account of hisstatus as a Guatemalan returning from the United States andapproving of BIAs determination that criminals in Guatemala wouldtarget anyone who might provide money or valuables); Reyes Betetav. Holder, 406 F. Appx 496, 499 (1st Cir. 2011) (rejectingpetitioners claimed fear of future persecution based on belongingto the group "expatriates returning from working in the UnitedStates and are perceived to have wealth" because criminal activitywas widespread and non-targeted); see also Perez-Hernandez v. AttyGen., 444 F. Appx 390, 393 (11th Cir. 2011) (rejecting claim ofwell-founded fear of future persecution based on membership in the -8-
  9. 9. group of "Guatemalans returning from the United States" asunsupported by the record, which instead showed widespreadviolence); Gonzalez v. Holder, 420 F. Appx 703, 704 (9th Cir.2011) (rejecting similar claim). This case does not compel us torecognize such a group for the first time, as the Perezes have notprovided a shred of evidence connecting Hernandezs repatriation tothe attack. A complete lack of documentation is certainly notsufficient to show a "reasonable likelihood" that the Perezes willface persecution on account of their status as Guatemalansreturning from the United States. See López-Castro v. Holder, 577F.3d 49, 53 (1st Cir. 2009) ("Without knowing who was responsiblefor the killings [of the petitioners family members] or what hadprompted them, it is no more than a guess that a nexus existedbetween the deaths and a statutorily protected ground."). It is more likely that this is just another tragicoccurrence of the widespread violence in Guatemala that we havefrequently observed, but fear of this pervasive violence cannot bea basis for asylum. See Palma-Mazariegos, 428 F.3d at 37 (notingthat the State Department Country Conditions Report "attests thatthe threat of violence afflicts all Guatemalans to a roughly equalextent, regardless of their membership in a particular group orclass," and that threat will therefore not support a well-foundedfear of future persecution); Quevedo, 336 F.3d at 44 ("This Circuithas rejected the contention that pervasive non-political -9-
  10. 10. criminality in Guatemala constitutes a basis for asylum."). Thisis the same conclusion that the BIA reached when it determined thatthe Perezes had not shown the attack on the Hernandez family "to besomething other than a terrible crime" and that the Perezesresulting fear was "of generalized violence and crime" in Guatemalaand thus insufficient as a basis for asylum. While we are troubledand saddened by the attack on the Hernandez family, we are notpersuaded that "it would be worthwhile to develop the issuesfurther at a plenary hearing on reopening." Smith, 627 F.3d at438. III. Conclusion Discerning no abuse of discretion, we deny the petitionfor review. -10-